Pathos is a recognized form of rhetoric. Until today, it had little real place in the law. The Connecticut Supreme Court changed all that with a 4-3 ruling in a case involving guns and the victims of the horrific mass shooting at the Sandy Hook Elementary School in Newtown, Connecticut, in December 2014. The Court’s ruling in Soto v. Bushmaster is no doubt en route to the United States Supreme Court, where, I suspect, minds more disciplined and less steeped in pathos will reverse.
If you were alive, sentient and in Connecticut on the morning of December 14, 2014, you will remember what you were doing the moment you learned that 20 students and six adults were gunned down by Adam Lanza. I was awaiting a verdict in a murder case involving a shooting in the Eastern part of the state. It was a grim day. Death seemed everywhere.
The shooting, as such shootings do, became the fodder of our roiling debate about guns. Soon the victims’ families were instant objects of pity and sympathy. They rapidly became symbols, then martyrs, then spokesmen for those favoring more robust regulation of guns. Those who regard the Second Amendment as a divine license to arm one self to the teeth took a different tack – extremists took the view that Sandy Hook was a hoax.
Most of us stood aside and let the politics play itself out in legislative chambers.
It was perhaps inevitable than lawyers would weigh in. We always do. So plaintiffs’ lawyers signed a series of surviving families up for a challenge. Could gun manufacturers and those who sell them by held accountable for the deaths in Sandy Hook?
It appeared not, until today’s ruling.
As a general matter of federalism, two governments have jurisdiction over each of us whenever we are in the United States. A state government possesses power over our health, education and welfare – the so-called police powers. The federal government has a more limited reach, extending only so far as the Constitution gives it power – the so-called federal questions.
Drawing the line between police powers and federal questions is tricky work. How that line gets drawn is one of the dominant themes of jurisprudence since the early 20th century.
One doctrine lawyers use to draw this line is called “pre-emption.” When Congress enacts a law, that law federal pre-empts, or takes precedence over state law. Thus, a power once reserved to the states becomes a matter of federal law. (On a related note, when the Supreme Court interprets a federal constitutional question its ruling becomes the supreme law of the land, overriding contrary state laws. What makes the Roe v. Wade abortion decision controversial to constitutional lawyers is not the right it guarantees to have an abortion, but the troubling and obscure reasoning supporting the decision. Isn’t abortion a state law matter?)
In the gun cases, Congress, no doubt a captive of the gun lobby, passed a law in 2012, the Lawful Commerce in Arms Act, that granted gun makers and distributors immunity from law suits for illegal acts committed with firearms. This is an example of pre-emption, trumping traditional state legal doctrines establishing liability for folks who put things into the stream of commerce.
The gun case involving the Sandy Hook defendants was tossed from court when first filed. The trial court ruled that under the Lawful Commerce in Arms Act, the Sandy Hook plaintiffs simply could not bring an action under Connecticut law involving the death of their loved ones against gun makers and distributors.
Today’s Supreme Court ruling largely upheld that ruling with one important caveat – the Court held that the manufacturers might be held liable because of how they advertised and marketed their products. As the Court put it, the defendants are alleged to have engaged in:
"advertising and marketing the XM15-E2S [Weapon] in an unethical, oppressive, immoral, and unscrupulous manner that promoted illegal offensive use of the rifle. Specifically, they allege that the defendants:
"promoted use of the XM15-E2S for offensive, assaultive purposes— specifically, for ‘‘waging war and killing human beings’’—and not solely for self-defense, hunting, target practice, collection, or other legitimate civilian firearm uses
"extolled the militaristic qualities of the XM15- E2S
"advertised the XM15-E2S as a weapon that allows a single individual to force his multiple opponents to ‘‘bow down’’
"marketed and promoted the sale of the XM15- E2S with the expectation and intent that it would be transferred to family members and other unscreened, unsafe users after its purchase."
You’ll need a law degree and the patience of six saints to read through the Supreme Court’s tortured analysis of how this advertising escapes pre-emption. I do encourage you to read it, however. Implicit within it is a warning to makers of violent video games, films and works of fiction – pour gasoline on the smoldering rage of the loner and you just might get burned. Connecticut prefers a softer, kinder nanny state to the state required by the First Amendment.
Expect the losers in this case to take the case to United States Supreme Court, and expect that Court to reverse on pre-emption grounds. And against the remote possibility that the Connecticut Supreme Court’s tortured effort to escape pre-emption persuades the United States Supreme Court to uphold on statutory grounds, expect a First Amendment challenge. Is it really unlawful to market things using robust, even offensive speech? What’s #MeToo going to do with that the next time it sees an ad it thinks fosters “rape culture?” Is GIJoe a tool of toxic masculinity?
Horrible cases make horrible law. All of Connecticut was wounded when 26 innocents died in Sandy Hook. It moves us to pathos. But pathos makes for bad jurisprudence. The Supreme Court’s 4-3 decision in this case is an example of what happens when justice is tempted to play politics.
Gov. Ned Lamont lives in a bubble, and that bubble is impenetrable. I know this because he was once a potential juror on a criminal case I was trying in Stamford. The charge was attempted murder.
Bottom line: The judge, prosecutor and I agreed that after listening to Mr. Lamont’s answers to questions about the presumption of innocence, we all concluded he was unfit to serve. You see, Mr. Ned – I think of him as the human version of Mr. Ed, Wilbur’s talking horse – just couldn’t seem to commit to following the law. He was so busy trying to show us what a smart guy he was, he talked himself into a corner.
Think about that for a moment. Our governor was rejected for jury service because he could not make the necessary commitment to follow the law on a fundamental legal principle.
If memory serves, this was just after he lost a race for the United States Senate.
Mr. Ned’s governor now. But he still doesn’t understand the legal system.
His first budget proposes an extension of the sales tax to legal services. He wants to tack on the 6.35 percent levy to help close the state’s yawning budget gap. Does he not know that this will make it even harder for ordinary people to afford lawyers?
Mr. Ned lives in a bubble, I tell you. His wealth insulates him from the concerns of folks who stumble into law offices daily, desperate for help.
The fact of the matter is that the middle class is dead and dying. It never recovered from the 2008 recession. The overwhelming majority of folks charged with a crime now rely on public defenders. On the civil side, harried court administrators will tell you that their dockets are clogged with people representing themselves, so-called pro-se litigants, because they can’t afford lawyers. Folks who need lawyers can’t afford them; lawyers who need clients can’t afford to work for what clients have to offer.
So what will the net effect be of this new tax on legal services?
Rates for services will increase by as much as 10 percent, thus making lawyers an impossible luxury for even more people. The lines in the courthouses will grow on the civil side. More people will need public defenders. Some lawyers will go out of business, those already hovering on the margins trying to make a dollar out of the 15 cents of misery potential clients can offer.
I say 10 percent for the following reason.
Add $63.50 – 6.35 percent -- to the $1,000 legal bill. Then add in time for the bookkeeper to keep track of the taxes, the office manager to make sure tax reports are filed, and the accountant to audit and prepare returns. What once cost $1,000, a pittance in legal fees, will now cost $1,100. That $10,000 fee to represent someone facing prison time will now be $11,000.
Each and every day, my office gets calls from people in crisis looking for legal services. Many are candid. They know lawyers have a duty to perform a certain amount of pro bono – or free – work. “I would like to be your pro bono case” is a line someone must be teaching folks to say, I hear it so often.
That’s not a very effective way to shop for a lawyer.
I often respond by telling folks, “Well, I’d like you to be a paying case.”
Then comes the interminable dickering. Folks want a payment plan. “Trust me,” they say. “I’ll make the payments.”
Almost no one does. And only a heartless lawyer sues for an unpaid fee.
Folks looking for a lawyer follow the Bar Closing Rule.
At the end of the day, a person in crisis regards the lawyer, any lawyer, as the stranger sitting at the end of the bar at closing time. Desperation sets in. Rather than leave alone, the stranger is promised anything they ask for. But once morning dawns, and the stranger has served his purpose, they are left – often with broken promises on the pillow. A lawyer who trusts desperate strangers is either a fool or a saint. I am neither.
We don’t do payment plans. If I’m your best bet in a crisis, then I expect you to ante up if the crisis is real. If you can’t, I can’t pay my employees, expenses, and myself with promises. It just doesn’t work that way.
So Mr. Ned’s new tax just makes the market for legal services that much meaner. I’ll have to be even more careful deciding whose case to take and what terms are necessary for me to remain in business. I’ll be ten percent harder to reach for people who are already dangling on frayed lifelines.
Lines in the courthouses will grow. More public defenders will be necessary. The state will have to add staff to handle the lines and cases. The money we bring in with new taxes today will result in more spending later.
I know the punch line: What do you call five lawyers at the bottom of the ocean?
Answer: A good start.
Lawyers are easy to hate. We are social oncologists, called upon to handle things when something goes wrong. We’re hated until we are needed, and when we’re needed we’re still hated, unless we make a client’s dreams – no matter how irrational the dreams – come true.
Mr. Ned’s new tax will make things that much worse. Thank you, Mr. Ned.
Query to the governor: Do you sing a little ditty when you stand daft in the morning’s mirror? You should. Think Wilbur. Think Mr. Ed. Think the theme song to that iconic show. “I am Mr. Ned.”
You ought to. I’ll certainly be humming that tune when I contemplate your new tax and its effects on potential clients, and on my firm.